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Avery v. Benson

United States District Court, E.D. Michigan, Southern Division

January 10, 2020

David Avery, et al., Plaintiff,
v.
Secretary of State, Jocelyn Benson, et al., Defendants.

          Elizabeth A. Stafford Magistrate Judge

          OPINION AND ORDER DISMISSING DEFENDANT GENE'S TOWING COMPANY WITHOUT PREJUDICE; GRANTING THE CITY OF DETROIT'S AND THE DETROIT POLICE DEPARTMENT'S MOTION TO DISMISS [7]; AND GRANTING THE SECRETARY OF STATE'S MOTION TO DISMISS [17]

          ARTHUR J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiffs - David Avery and three corporations he owns - bring this suit under 42 U.S.C. § 1983 and Michigan state law for monetary and injunctive relief against the City of Detroit, the Detroit Police Department, the Michigan Secretary of State, and Gene's Towing Company.

         Factual background

         The Amended Complaint provides very little factual detail. Plaintiffs allege that Avery operates a tow-truck recovery service and that in 2015 he was accused of identity theft and violation of Michigan laws pertaining to the recording of vehicle titles. He was prosecuted in the Third Circuit of Michigan in State of Michigan v. David Avery, No. 15-06190301-FY (filed Dec. 17, 2015) and then State of Michigan v. David Avery, No. 16-05507301-FY (filed Mar. 4, 2016). The county sought civil forfeiture against his property in People of the State of Michigan ex rel. Kym L. Worthy, Wayne County Prosecutor v. Real Property Located at 3734-40 Fenkell, Detroit, Michigan, 48238, et al., and One 2012 Ford DRW Tow Truck (VIN: 1FDOW5HTCDC09022), et al, and David Avery, No. 16-000649-CF. Plaintiffs have attached to their Amended Complaint a stipulated order signed by Chief Judge Robert J. Colombo, Jr. ordering the return of Plaintiffs' property.

         Plaintiffs also allege that the Michigan Secretary of State has placed an administrative flasher on him and his companies that requires Avery to ask permission of a Secretary of State investigator before selling vehicles or renewing his drivers' license. The flasher has also allegedly prevented him from renewing his standing with the Highland Park Police Department, where he previously served as a reserve officer.

         Procedural Background

         Plaintiffs filed suit on March 3, 2019. [Dkt. # 1]. They filed an Amendment Complaint [3] on April 5, 2019. It appears from the docket that one Defendant, Delanard Harris, was not served. On May 15, 2019, the City of Detroit filed a Motion to Dismiss [7]. On June 4, 2019, Gene's Towing Company filed a Motion to Dismiss [10]. After filing a Motion for Extension of Time [11], Plaintiffs responded to both motions on June 25, 2019. On July 16, 2019, Secretary of State Jocelyn Benson filed a Motion to Dismiss [17]. All three motions were briefed, and a hearing was held on these motions on November 6, 2019. Per the Court's order, the City of Detroit and the Secretary of State filed supplemental briefing [25, 26] on November 20, 2019.

         Legal Standard

         The Secretary of State moves to dismiss for lack of subject matters pursuant to Fed.R.Civ.P. 12(b)(1). A challenge to subject matter jurisdiction takes the form of a facial attack or a factual attack. Such a motion may challenge “the factual existence of subject matter jurisdiction.” Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014). Accordingly, Plaintiffs' factual allegations do not get the benefit of the presumption of truthfulness, and the Court may “weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

         All three movants move to dismiss under Rule 12(b)(6). On motions to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must “construe the complaint in a light most favorable” to Plaintiffs and “accept all of [their] factual allegations as true.” Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). “Although the factual allegations in a complaint need not be detailed, they ‘must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.'” Id. quoting LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive such a motion, Plaintiff must plead factual content that allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-'that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         Analysis

         Plaintiffs bring causes of action under 42 U.SC. § 1983 and Michigan state law alleging mistreatment by Gene's Towing, the City of Detroit, the Detroit Police Department, and the Michigan Secretary of State.

         I. ...


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